ELR Citation: ELR 20378
No(s). 3-85-0959 (M.D. Tenn. Nov 26, 1985)

The court holds that it has original and exclusive jurisdiction under the Nuclear Waste Policy Act (NWPA) over Tennessee's challenge to Department of Energy (DOE) procedures regarding potential monitored retrievable storage (MRS) sites in the state. After reviewing the statutory framework and contrasting the provisions for permanent and temporary storage of nuclear materials, the court rules that the exclusive jurisdiction vested in the courts of appeals by §119 does not apply to §141, the provision governing temporary storage of nuclear waste at MRS facilities. Subsection (1)(B) and (1)(C) of §119 clearly state that the courts of appeals have exclusive jurisdiction over actions arising "under this part." Internal consistency of the statute mandates that "part" be read to mean Part A of Subchapter I, in which §119 is found, and not Part C, in which §141 is found. Words such as "part" or "subchapter" were used with deliberate meaning by Congress in the statute. Moreover, Congress specifically listed in §141(h) those provisions from Part A that it was incorporating into Part C; §119 was not one of these incorporated provisions. Congress repealed the exclusive and original jurisdiction of the courts of appeals in the Judicial Code of 1911. Although it has occasionally restored the courts of appeals' original and exclusive jurisdiction, it has been very clear in its jurisdictional grant when it has done so, and those statutes have been construed narrowly. The statutory language offers no basis for jurisdiction and, in a note, the court observes that there is no legislative history to indicate congressional intent to vest exclusive jurisdiction in the courts of appeals over NWPA actions arising under sections other than §119(a).

The court disagrees with decisions of the District of Columbia Circuit Court of Appeals and District Court in two cases construing §302 of the NWPA. Both cases held that original and exclusive jurisdiction was vested in the courts of appeals even though that section is not enumerated in §119(a). The court finds that its sister courts violated the rules of statutory construction by failing to adhere to the literal meaning of §119(a). The court also distinguishes the District of Columbia Circuit opinion. It found an indirect bridge between §302 and §119(a) in a general reference to the subject matter of §302 in Part A of Subchapter I, which in turn is specifically mentioned in §119(a). The subject matter of §141, however, is not discussed in the the general provision of Part A. Nor is this court satisfied with the court of appeals' reliance on silence in the legislative history. Finally, in §302 matters the courts of appeals have an administrative record to review, whereas in a challenge to DOE actions on MRS facilities there is no such record, and the district courts are better able to develop one.

Counsel for Plaintiff
John Knox Walkup, Frank J. Scanlon, Deputy Attorneys General
450 James Robertson Pkwy., Nashville TN 37219
(615) 741-6474

Counsel for Defendant
James C. Thomason, Ass't U.S. Attorney
Rm. 879, U.S. Courthouse, 801 Broadway, Nashville TN 37203
(615) 251-5151

Wells D. Burgess
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-3769